Army seeks to bar mental health defense in massacre trial

Norwood native accused of killing 16 Afghans

Published 8:54 AM EST Jan 17, 2013

SEATTLE -

The U.S. Army wants to bar Staff Sgt. Robert Bales from using any sort of mental health defense to charges that he slaughtered 16 Afghan villagers last year because he has refused to take part in an official review of his sanity, according to documents obtained by The Associated Press.

Bales, a father of two and Norwood native who now lives in Lake Tapps, Wash., is due to appear Thursday morning in a military courtroom at Joint Base Lewis-McChord south of Seattle, where his lawyers say he will plead not guilty. Bales is accused of leaving a remote base in southern Afghanistan early on March 11, massacring adults and children in two villages, and burning some of the bodies - attacks which drew such outrage that the U.S. temporarily halted combat operations in the country.

In court documents provided to The Associated Press by John Henry Browne, one of Bales' lawyers, military prosecutors argue that Bales should not be allowed to have any expert witnesses testify about what effect his mental health might have had on his guilt. Nor do they want any expert to testify during the penalty phase of the trial, should it get that far, as to whether any history of traumatic brain injury or post-traumatic stress disorder should spare him the death penalty.

The reason: His lawyers have refused to allow him to participate in a "sanity board" review.

Such reviews are conducted by neutral doctors tasked with discerning a defendant's mental state at the time of the crime and whether he's competent to stand trial. Bales was serving his fourth deployment in a war zone, and his mental health has been expected to be a key part of the case.

"An accused simply cannot be allowed to claim a lack of mental responsibility through the introduction of expert testimony from his own doctors, while at the same time leaving the government with no ability to overcome its burden of proof because its doctors have been precluded from conducting any examination of the very matters in dispute," Maj. Robert Stelle wrote in a motion Jan. 3.

Alternatively, Stelle wrote, the judge should order Bales to immediately undergo the sanity review.

Bales' attorneys have said he may have suffered from a traumatic brain injury, possibly when he lost consciousness when an improvised bomb went off during one of his tours in Iraq. They have thus far refused to let him take part in the sanity board because the Army would not let him have a lawyer present for the examination, would not record the examination and would not appoint a neuropsychologist expert in traumatic brain injuries to the board.

However, in a reply to the government's motion, one of Bales' lawyers, Emma Scanlan, wrote Tuesday that Bales will participate - as long as only certain information about the results are forwarded to prosecutors. Prosecutors should promptly receive findings about his current competence, but nothing about his mental state at the time of the attack, she wrote.

That information should not be turned over to the government until Bales' defense team actually gives notice of their intent to use a mental-health defense or to have an expert testify, Scanlan said.

"There is no authority for the bizarre proposition that the accused has to submit to a compelled mental health examination before he gives notice of a mental defense," she wrote.

It wasn't clear whether the Army would agree to those conditions. The sides are expected to argue the issue before the judge on Thursday.

The court filings provided to the AP are supposed to be public, according to lawyers who specialize in military law. However, in this and other courts-martial, Joint Base Lewis-McChord has refused to provide them to reporters, leaving civilian defense attorneys as the only source for records that can be key to the outcome of cases.

Among other issues raised in the documents is the date for Bales' court martial. Prosecutors are arguing to set the trial quickly - for June 10 - because many witnesses remain in a volatile part of Afghanistan. Two possible witnesses have already been killed in separate and unrelated attacks, they noted, and as American troops withdraw, access to those witnesses is only going to get tougher and more dangerous.

"Simply stated, with each day that passes, the government's right to a fair trial is further jeopardized," they wrote.

Scanlan called that unrealistic, given how much time the defense team needs to review more than 30,000 pages of discovery materials, and find and interview witnesses - not to mention getting their own client to open up. The defense has suggested a May 2014 trial date.

"Without adequate time to develop the relationship of trust required for effective representation in a capital case, counsel may never learn or be able to present the most crucial facts about the accused, facts without which any possible understanding of his actions is impossible," she wrote.

She noted that Bales' case was formally referred to a court martial just last month. For the last five U.S. courts martial where the death penalty was a possible punishment, the average elapsed time from date of referral to date of trial was one year and eight months, she wrote. Setting Bales' trial for this June would be a record pace, she suggested, and would risk harming the quality of his legal defense.

The documents also show that Bales' lawyers requested the appointment of a neuropsychologist to the defense team after a forensic psychiatrist who had already been appointed, Dr. Thomas Grieger, reported that he didn't have the expertise to evaluate Bales for traumatic brain injury. The Army refused, saying the defense hadn't shown that such an appointment was necessary.

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